Why this Election is About the Freedom of Religion

One can argue that every presidential election is a historic election. But some are more historic than others. Daniel Henninger had a provocative column yesterday making a strong case that this one is a tipping point between America continuing as an entrepreneurial society or going the way of the European social democracies. He cites the late Senator Pat Moynihan who said the big difference between Europe and America is that the former gives priority to equality and the latter to liberty. Im not sure that Henninger is right in saying there would be no turning back after four or eight years of President Obama and an overwhelmingly Democratic Congress imposing their passion for a government-directed program of redistribution and social coordination, but the future he depicts is both plausible and ominous.

There is another dimension of this ideological passion for the expansion of government control that is at least equally worrying. It has to do with the freedom of religion in the American constitutional order and the indispensable part that religion plays in checking the ambitions of the modern democratic state. Obama has said that he thinks it is tragic that the Supreme Court has declined to advance the cause of redistributive justice. That refers, of course, to economic redistribution. But the language of healing divisions and bringing us all together¯under government auspices¯applies also to the social dynamics of American society.

There are several issues, all closely related to religion, on which Obama, for all his undoubtedly sincere talk about his own faith and the importance of religion in public life, is manifestly hostile to the vibrant diversity of American life. The first is abortion, of course. The protection of innocent human life should not be seen as an exclusively religious concern, for it is grounded in scientifically-informed moral reason that should be compelling to all. Nonetheless, the pro-life cause is largely driven by the religiously motivated.

Obama makes no secret of his intention to shut down that cause and disenfranchise the millions who are committed to the abolition of the abortion license imposed by Roe . This is evident beyond doubt by his repeated and enthusiastic endorsement of the Freedom of Choice Act, which would, among other things, eliminate all state regulation of abortions¯such as informed consent and parental notification¯and provide government funding for abortions. FOCA aims to extinguish once and for all the single issue in American public life on which the free exercise of religion has had greatest potency in the last several decades of our history. Similar dynamics are in play in the court-imposed laws favoring same-sex marriage, of which Obama has expressed his approval, such as the California ruling now being fiercely contested in a referendum.

Consider also Obamas consistent hostility to parental choice in education, even though for millions of African-Americans in our cities having an alternative to the failed government school system is their only hope for a decent education. Parental choice in education is by no means an exclusively religious concern, but religious and moral concerns are typically pronounced among supporters of charter schools, vouchers, and homeschooling. Here again, Senator Obama, in lock-step with the public-school teachers unions, is the champion of monism against pluralism in American society.

Then there is his position on the faith-based social initiatives advanced by George W. Bush. Obama says he favors such initiatives, but he also insists that faith-based institutions using government funds must not be permitted to discriminate in their hiring policies. This would, quite simply, mean the end of such institutions being faith-based. If an institution is not free to choose leaders who affirm its guiding and motivating mission, it is, in fact, forced to surrender that mission. That applies to any institution, but in this case it clearly violates the free exercise of religion by those for whom the most important thing in faith-based is faith. It is fatuous to say they are not forced to accept government funds. If they are denied government funds because they are determined to maintain their religious character, that is clearly discrimination against religion. Nobody suggests that Planned Parenthood, which also receives government funding, should be disqualified because it refuses to hire leaders who oppose abortion.

On these and other issues, Senator Obama is an ideological statist, determined to impose a monist vision on a pluralistic society. Although some were more explicit about it than others, the American Founders understood that religious freedom is the foundation of all the other freedoms they intended to protect. It is not entirely by accident that the first freedom mentioned in the First Amendment is the freedom of religion.

To contend for the free exercise of religion is to contend for the perpetuation of a nation that is, in Lincolns words, so conceived and so dedicated. It is to contend for the hope that this nation, under God, shall have a new birth of freedom; and that government of the people, by the people, for the people, shall not perish from the earth. Despite the perverse jurisprudence of recent decades, most Americans still say with the Founders, We hold these truths. And, with the Founders, they understand those truths to be inseparably tied to religion, both in their origin and in their continuing power to elicit assent.

This is not to say that the founding truths cannot be supported for reasons unrelated to identifiably religious warrants. They can be. But in their origins and continuing power to elicit popular adherence, they are inseparable from religion. Remove that foundation and we remove the deepest obligation binding the American people to this constitutional order.

The words from Lincolns Gettysburg Address, under God , were added to the Pledge of Allegiance only in 1954, but, as recent debates over removing those words have made clear, for most Americans they are inseparably connected to their understanding of this constitutional order. There are those who make no secret of their wish that the American people were not as religious as they are. One is reminded of the observation of the playwright Berthold Brecht. After the June 1953 uprising in East Germany, the secretary of the communist partys writers union distributed leaflets declaring that the people had lost the confidence of the government and it would take redoubled efforts to win it back. To which Brecht responded, Would it not be easier in that case for the government to dissolve the people and elect another? Church-state decisions by the Supreme Court, and by the judiciary more generally, sometimes seem to be aimed at replacing this inconveniently religious people with another people more to its secular fancy. His rhetoric about the importance of religion notwithstanding, these are the decisions that, whether explicitly or by logical inference, Senator Obama supports¯only adding that he wants a more interventionist judiciary to press for their full implementation.

The free exercise of religion can be inconvenient, and sometimes more than inconvenient. Sometimes¯reluctantly, and in cases of supreme and overriding public necessity¯the claim to free-exercise protection for certain actions must be denied. Where such lines should be drawn is a matter of both constitutional law and democratic deliberation. It is sometimes simply a matter of prudence, civility, and common sense that does not require the invocation of high constitutional doctrine. In this age and this country, as Lincoln might say, the limits on the free exercise of religion must themselves be legitimated to the satisfaction of those who care, and care deeply, about religion.

We have in this last half century drifted far from the constituting vision of this novus ordo seclorum . The free exercise of religion is the irreplaceable cornerstone of that order. In his famed Memorial and Remonstrance , James Madison wrote: It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. The last line bears repeating: This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. That is the truth that the Religion Clause is intended to protect from the overweening ambitions of the modern state.

The great problem today is not the threat that religion poses to public life, but the threat that the state, presuming to embody public life in its entirety, poses to religion. The entire order of freedom, including all the other freedoms specified in the Bill of Rights, is premised upon what Madison calls the precedent duty that is signaled and sustained by religion. When the American people can no longer publicly express and give public effect to their obligations to the Creator, it is to be feared that they will no longer acknowledge their obligations to one another¯nor to the Constitution in which the obligations of freedom are enshrined. The word enshrined is used advisedly.

Those who belong to what St. Augustine called the City of God on its pilgrim way through time are careful not to sacralize any temporal order short of their destination in the New Jerusalem. Along the way, however, as the prophet Jeremiah counseled the Israelites in Babylonian exile, we seek the peace of the temporal city in which we find also our provisional peace. In this penultimate world of temporal orders, the First Amendment guarantee of religious freedom touches upon the sacred. Upon its vigorous defense rests the hope of novus ordo seclorum ¯the hope that this experiment in representative democracy may be a new order for the ages.

I am sure that Senator Obama shares that hope. I am also sure that¯based on his above-mentioned positions and his enthusiasm for a monistic and government-directed rather than pluralistic and free society¯he does not begin to understand why that hope depends on the first freedom of the First Amendment, the freedom of religion.